The London Courthouse in London, Ont. on Friday, May 16.Nicole Osborne/The Globe and Mail
The judge presiding over the sexual-assault trial of five former members of Canada’s 2018 world junior hockey team will spend the weekend deciding the admissibility of a crucial piece of Crown evidence – a text message that the prosecution says corroborates key testimony from the complainant about one of the accused.
The text message comes from an exchange between former world junior players Brett Howden and Taylor Raddysh a week after their then teammates allegedly sexually assaulted a woman – known publicly as E.M. − in a hotel room in London, Ont., on June 19, 2018, after a Hockey Canada gala.
Mr. Howden and Mr. Raddysh, are not accused of any wrongdoing, but both were in the hotel room on the night in question and have appeared as witnesses in the trial.
Court has heard that on June 26, 2018, Mr. Howden texted Mr. Raddysh: “Dude I‘m so happy I left … Man, when I was leaving, Duber was smacking this girl‘s ass so hard. Like, it looked like it hurt so bad.”
“Duber” is a reference to Dillon Dubé, court has heard, who – along with Michael McLeod, Carter Hart, Alex Formenton and Cal Foote − is on trial for sexual assault. Mr. McLeod faces a second charge of being a party to sexual assault.
All have pleaded not guilty.
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Earlier this month, E.M. told the court she was slapped hard on her buttocks in the hotel room. During cross-examination, Mr. Dubé’s lawyer, Lisa Carnelos, asserted that E.M. had been “taunting” the players, which prompted one of the men to give her a “playful” slap.
Tyler Steenbergen, another member of the 2018 team who was in the hotel room but is not accused of wrongdoing, told the court that he saw Mr. Dubé slap E.M.’s buttocks. He said it “wasn’t hard, but it didn’t seem soft either.”
Defence lawyers representing the accused players this week argued that the text message is inadmissible evidence − meaning that the judge is not allowed to consider it when deciding the case.
Mr. Howden, who now plays in the NHL for the Vegas Golden Knights, told the court that he remembers texting Mr. Raddysh, but he couldn’t remember the contents of the message.
Despite his lack of memory, Mr. Howden told the court that he believes he was being truthful in the text – “I had no reason to lie” – but he conceded under questioning from Ms. Carnelos, that the conversation was “casual” and that he was not concerned at the time about every word being factual. (The entire text exchange was 10 pages in length.)
It was because of this latter admission that Justice Maria Carroccia denied a request on Thursday from the Crown to have the message admitted into evidence under what’s called a “past recollection recorded” application.
Minutes after Justice Carroccia made her ruling, Crown attorney Meaghan Cunningham made a last-ditch effort to put the text on the record through another route called the “principled exception” to hearsay rule.
Ms. Cunningham characterized the texts as “critical corroboration” of E.M.’s testimony about one of the offences. She called it “direct evidence” of the offence.
“The information contained in this text message is important to the Crown’s case, and the manner in which we can adduce this evidence is very much dependent on how the events have unfolded,” she said in court. “I think it’s fair to say that the evidence of Mr. Howden has not proceeded as anticipated.”
Mr. Howden, who was in and out of the witness box throughout the past week, was to be a crucial witness for the Crown, because of statements he made to a Hockey Canada investigator in 2018 about what transpired inside the hotel room on June 19, 2018. (Hockey Canada is the sport’s national governing body. After the organization learned about the alleged assault, it hired Toronto lawyer Danielle Robitaille to conduct an investigation.)
In interviews with Ms. Robitaille, Mr. Howden said he heard the complainant “weeping” at one point. He also said he saw Mr. Dubé slap E.M.’s buttocks.
But in the witness box, Mr. Howden said he couldn’t remember any of these events. Even when he was presented with transcripts of his prior statements, Mr. Howden maintained that they did not refresh his memory.
All together, Ms. Cunningham identified 18 alleged inconsistencies between Mr. Howden’s current narrative and his past statements.
On Wednesday, the Crown and defence team spent much of the day arguing about whether Ms. Cunningham could cross-examine Mr. Howden about the alleged inconsistencies.
These arguments were handled in what is called a voir dire – a trial within a trial. The debate around the admissibility of the text message also occurred in a voir dire.
With respect to the Crown’s request to cross-examine Mr. Howden on the alleged 18 inconsistencies, Justice Carroccia partly denied Ms. Cunningham‘s application, but allowed some legal issues to proceed to the next stage of legal arguments.
However on Friday, the issue became moot − and the voir dire was abandoned − after the defence and Crown agreed to let Mr. Howden read sections of his 2018 statements aloud, which put them on the official court record.
Before reading the relevant 2018 passages at the end of the proceedings on Friday, Mr. Howden told the court that when he spoke with Ms. Robitaille seven years ago, he was trying to be truthful. He reiterated that he could not remember the details today.
Statements collected by Ms. Robitaille as part of the Hockey Canada investigation have been contentious in the criminal trial of the players.
Her interviews with three of the accused men − Mr. McLeod, Mr. Formenton and Mr. Dubé − were ruled inadmissible by a judge during pretrial motions.
Justice Bruce Thomas determined that including the statements would be unfair to the players, as he found they were obtained using coercive tactics, such as the fact that Hockey Canada threatened a lifetime ban if the men didn’t co-operate.
Justice Carroccia said she will announce a decision on Mr. Howden’s text message Monday morning.
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